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20 February 2013

Legal Impediments to Speaking Out about Abuse

Note: The publication of testimonies of abuse (including VAW) considered here are testimonies which contain details of the abuse identifying persons and places; not anonymised accounts of abuse. This piece was first published at 'Cold SnapDragon'; it's an issue I've been thinking of for a while but it's not an issue which I'm entirely clear about in my own mind — I have no doubt that this post reflects my own lack of certainty.

About 10 days after writing this piece, I came across an article about Somalia (not India) where 'a woman who said she was raped by government forces, and a journalist who interviewed her, were charged with insulting Somali state institutions after the rape claim'. Although I have absolutely no knowledge of whether the rape claim was valid, the story stuck me as being an example of how content laws may potentially silence those claiming (either truly or falsely) to have been abused. [Update on the case from Somalia; March 3, 2013: Somali woman cleared in 'false rape' case]

Unfortunately, the possible legal implications of publishing testimonies of those who have been abused have the potential to result in proposals to engage in such publication being reconsidered, if not completely abandoned. This is detrimental to any effort towards transparency, and the recognition of abuse, which is the first step towards combating it.

Due to this, if there’s anything it is imperative for a society (that claims to be working towards becoming abuse-free) to ensure its members enjoy, it is the right to free speech. In India, the right is enshrined in the Constitution as a fundamental right. The right may, however, be subject to reasonable restrictions according to Article 19 of the Constitution. And subject to such restrictions it certainly is.

There are, in India, at least thirty statutes which contain provisions that impact free speech either directly or through subordinate legislation. Not all of these laws, even though they do have free-speech implications, have an impact on the publication of testimonies of abuse. Those which do have an impact though include both civil laws and criminal laws. And they can be used as incredibly powerful silencing tools.

For a person who has been abused to choose to speak out in the face of the possibility of civil proceedings being initiated can be an incredibly difficult decision, especially given that potential legal fees alone could be intimidating. And for a person who has been abused to choose to speak out in the face of the possibility of facing criminal charges is often unthinkable. Unsurprisingly, the result is that persons who have been abused may choose not to speak out at all.

And while it’s certainly true that restrictions to free speech apply uniformly across the board, to both those who have been abused and to those who abuse, it is possible that those who are abused are disproportionately impacted by the restrictions. This is simply because those who abuse are usually better placed than those who are abused, and are far more likely to have the tools to defend themselves if at all legal proceedings are initiated, which is, in itself, unlikely, since those abused often do not have the resources to invoke the protection of the law. As such, it may be possible to argue that uniformity in the applicability of restrictions to free speech to both those who abuse and those who are abused is comparable to uniformity in restrictions prohibiting both the poor and the rich from begging on the streets and stealing bread, to plagiarise Anatole France.

The Constitution certainly contains to right to equality in Article 14 but the right is not unqualified — much as the right to free speech is not unqualified. The Article states: ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India,’ and the judiciary has interpreted it such that ‘it is settled law that equals must be treated equally and unequal treatment to equals would be violative of Article 14 of the Constitution. But, it is equally well-established that unequals cannot be treated equally. Equal treatment to unequals would also be violative of 'equal protection clause' enshrined by Article 14 of the Constitution’.

It would be hard to deny that those who have been abused are quite simply not in the same class as those who perpetrate abuse. Consequently, it may not be entirely impossible to argue that victims of abuse should be granted more latitude than would normally be granted when it comes to matters of free speech in order to them to speak of their experiences without fear of legal ramifications. That said, the other side of the coin is that were such latitude to be granted by the law it would also have to come with checks and balances to ensure that the latitude was not abused to wreak havoc in the lives of the innocent. The easiest way to ensure that those ‘falsely accused’ were able to obtain protection from defamation would, of course, be by according to them the right to seek redressal in a court of law. Doing so would, however, bring one back to square one, with the victims of abuse — both real and false — being potentially subjected to an array of legal proceedings for having spoken out, since, of course, there would be no credible manner to separate false testimonies from true ones at the outset itself.

What is, sadly, therefore inescapable is that not only are victims of abuse impeded from speaking out about their experiences but that there appears to be no simple way in which the status quo could be changed with regard to the current legal framework. What we need, in all likelihood, is for laws governing content to be completely restructured across the board with far more emphasis being placed on the right to free speech.

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